Broadcasting Standards Authority

These notes were prepared in June 2009. They are intended as general information not specific legal advice. If you want legal advice about a particular problem, you can contact me here.

What is it?

The BSA hears complaints about radio and television (including subscription and pay TV, but not including broadcasters’ websites). It’s a statutory body, set up under the Broadcasting Act 1989.

How do I complain?

Complaints must be in writing and sent within 20 working days of the broadcast. They must allege a breach of the codes of broadcasting practice, which contain standards, principles and guidelines generally relating to fairness, accuracy, balance, privacy, law and order, taste and decency, violence, children’s interests and programme time-zones. Complaints must first be sent to the broadcaster concerned (except complaints about breach of privacy, which may be referred directly to the BSA).

Any complainant dissatisfied with the decision of a broadcaster (including dissatisfaction with the action the broadcaster proposes to take having upheld the complaint) may refer the complaint to the BSA. This must be done within 20 days of receiving the broadcaster’s response.

What’s the difference between standards, principles and guidelines?

The codes of practice contain standards (in the radio code, they’re called “principles”) and guidelines. The guidelines are intended to assist in the interpretation of the standards. But they provide strong guidance, to the extent that the BSA often applies the guidelines as if they were standards themselves.

Be aware, however, that the standards and guidelines do not tell the whole story. It is worth reading the practice notes issued by the BSA which give more elaborate information about how the BSA has approached the various standards. At the moment, there are practice notes on law and order, taste and decency, and denigration and discrimination. More are planned. Of course, the BSA’s decisions also contain important information about their approach to various issues (see below).

What’s the BSA’s decision process?

The BSA has power to hold a hearing, but invariably decides cases on the papers, after an exchange of correspondence between the parties. The BSA has power to order the parties to disclose relevant material, but will only do so when it is convinced that it is “necessary to enable the authority to deal effectively with the complaint”. This is very rare. The BSA is required to deal with complaints with “as little formality and technicality as is permitted” by the Act, by “a proper consideration of the complaint” and by “the principles of natural justice”.

The BSA occasionally gathers evidence itself, and can request or require the parties to answer questions.

How often does the BSA uphold complaints?

The BSA upholds between a fifth and a quarter of complaints.

What penalties can it impose?

About half of the time, when it upholds a complaint, it does not impose any further order. For significant inaccuracies or serious breaches, particularly where there is injury to someone depicted, fault on the part of the broadcaster, or high public interest, the BSA will often order the broadcast of a statement, which may include an apology. For very serious cases, it has the power to impose an advertising ban, or even order the broadcaster off-air, for up to 24 hours. These penalties are very rarely imposed. It can award up to $5000 damages, but only in privacy cases. It can order a payment of costs to the Crown as a form of fine.

Does the BSA have power to award costs to the complainant?

Yes. It has issued an advisory opinion about its approach.
In short, the BSA will usually order the broadcaster to pay about a third of a successful complainant’s reasonably incurred legal (and very occasionally other) costs. Costs are reasonably incurred where there are numerous or complex issues or interlocutory applications. Cost awards may be higher where the complainant has been commercially or personally harmed by the broadcast, or the broadcaster has unreasonably prolonged the proceedings. They may be less (or even none) where most of the complaint was dismissed, or the complainant unreasonably prolonged the proceedings.

Where can I find its decisions?

How does the BSA deal with the accuracy standard?

Accuracy is about news, current affairs or other factual programmes that are significantly misleading on points of fact. This may be a simple misstatement of an important fact. (Minor errors tend to be excused). It may also occur through omitting information that is so significant that the thrust of the story is misleading without it. Inaccuracies may also include misleading impressions, significant exaggeration, incorrect summaries, misleading graphics, and the use of footage out of context. Opinions will generally not be treated as points of fact. The complainant should be able to point to some reason (preferably authoritative evidence) for thinking the item is inaccurate. After that, the BSA generally expects the broadcaster to provide credible evidence of accuracy, though there is no formal onus of proof.

What’s balance about?

When controversial issues of public importance are discussed, the balance standard requires that “reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme, or within the period of current interest”. Balance is about providing viewers or listeners with a range of viewpoints so that they can make up their minds about important issues. It can be provided across a range of programmes. It applies whether or not a particular person or organisation is portrayed negatively, though it can be particularly important in such cases. But it only applies to controversies of public importance (which may not include, for example, a dispute between a patient and a doctor or a landlord and a tenant). And it only applies when the particular controversy is squarely focused on in the programme, rather than arising peripherally (such as a throwaway comment by a host or a digression by an interviewee). The balance standard doesn’t require equal time for all views. Broadcasters have quite some discretion about whose views to include. They don’t need to include balance for every little point. The standard is relaxed for programmes that are plainly authorial. In short, balance is narrower than it may first appear, and balance complaints are not often upheld.

How is the fairness standard different?

The fairness standard is wider in many ways. It isn’t limited to news-type programmes. It isn’t limited to programmes dealing with controversial issues of public importance. It can’t be fixed by extra fairness in an ensuing programme. Where balance is about informing the public, fairness is about the treatment of people and organisations portrayed in the programmes. Unfair treatment comes in a variety of guises. It includes failing to give someone a chance to respond to a negative portrayal, using deception to gather information without justification, bullying interviewing, sneaky editing, innuendo, using information or images out of context or omitting key information, and exploiting grief or distress, among much else.

Can I complain that a programme is discriminatory?

One aspect of unfairness is encouraging denigration and discrimination on account of sex, sexual orientation, race, age, disability, occupational status, or political, religious or cultural beliefs. There are exceptions for material that is factual, opinion-based, or satirical. The threshold for complaints is high. Programmes that are merely ill-informed, distasteful, inflammatory or offensive do not breach this standard. The programme must have blackened the reputation of a class of people, in a manner akin to hate speech.

What are the rules on privacy?

These are set out in a set of privacy principles, which are incorporated into the codes. In short, broadcasters should not reveal sensitive private information about identifiable living people if reasonable people would find the revelation offensive, unless there is consent, or an overriding public interest in the private information. Nor should they gather information for broadcast using intrusive methods that reasonable people would find offensive, unless there is an overriding public interest. Usually, information obtained in public places, or from the public record, or which has been previously publicised, won’t be private. Broadcasters dealing with children under 16 must be sure not to harm or humiliate them, even if a guardian gives consent to the broadcast. Complainants don’t have to be personally affected to bring a privacy complaint, but the BSA may contact the person whose privacy has been affected and ask whether they want the complaint to go ahead.

How does the law and order standard operate?

The law and order standard is frequently misunderstood. It doesn’t require broadcasters to obey the law, or to be politically pro-law and order. It is aimed at broadcasts that glamorise or encourage criminal activity, or explain criminal techniques, or seriously interfere with legal processes.

How can I tell if something breaches the good taste and decency standard?

The good taste and decency standard is often invoked by complainants but seldom upheld by the BSA. Programmes that contain iffy material – offensive language, violence, explicit sexual material or nudity – will very often be saved by their context: they are broadcast late, are integral to serious drama or news, come after a warning, or otherwise are not out of line with the audience’s expectations for that particular programme. Material that is gratuitous or voyeuristic, including explicit sex or real-life violence aired for its entertainment value, is likely to be in breach.

What does it mean that broadcasters are required to be “mindful of the interests of children”?

This standard is related to the standard on taste and decency, but has a higher uphold rate. It effectively hikes the need for taste-and-decency type caution in the treatment of sexual themes and bad language during times when children are likely to be watching or listening (before and after school and up to, about 8:30 pm, or 9:30 pm on Fridays, Saturdays and school holidays). The standard is also aimed at disturbing or alarming material, such as programmes involving social or domestic friction or harm to children or animals. News programmes get more latitude as the BSA generally assumes parental supervision. Complaints are much less likely to be upheld where proper warnings have been given.

What should I bear in mind if making a complaint?

Take a careful note of the time and date of the broadcast complained about, and what it contained. Get a tape if possible. (If you haven’t been able to see the programme by the time you have referred the complaint to the BSA, you will probably be able to arrange to view it at their office).

Don’t miss the complaint or referral deadlines.

Head the complaint up “formal complaint”.

Draft your complaint carefully. You will generally be precluded from later raising anything that does not fall within the scope of your complaint, ie was not generally canvassed in the complaint. So: make the general thrust of the complaint clear, but not necessarily all the specifics. For example, you can complain that the programme was unfair to the complainant organisation, and the unfairness includes unfairly portraying them in a negative light and failing to seek or include its response. That will leave more room for substantiation and elaboration afterwards, perhaps in reply to the broadcaster’s response.

Don’t simply throw in every standard you think might have some vague relevance. Even if the complaint is upheld on a few grounds, any costs order will be reduced because of the futile grounds that are rejected.

Address your arguments to the standards, and not everything you think the broadcaster has done wrong. Generally, keep it fairly brief. Resist the temptation to keep repeating the same arguments as the exchange of correspondence develops.

When complaining about inaccuracy, provide authoritative evidence to support the claim.

Remember that often fairness, balance and accuracy go together. A failure to report a crucial piece of information can make a programme misleading and therefore inaccurate; the omission may indicate a lack of balance, and the resulting programme may be unfair. It may be best to include a complaint about all three.

When complaining about balance or privacy, add in fairness too. For one thing, they may overlap. More importantly, as we have seen, the balance and fairness standards are somewhat technical. Fairness may succeed where those may fail. This may mean foregoing the right to take a privacy complaint directly to the BSA, and instead following the usual process of referring the whole complaint to the broadcaster. Some privacy complaints are rejected by the BSA with the comment that a complaint under another standard may have succeeded. (An alternative is to take the privacy complaint straight to the BSA and simultaneously direct a fairness complaint to the broadcaster). Note, however, that only privacy complaints can result in damages awards.

Similarly, when complaining about good taste and decency, consider including a complaint about mindfulness of the interests of children too.

Note that talkback is usually regarded as a robust environment, and the BSA permits it quite some latitude for material that’s distasteful, abusive, provocative, inflammatory and even inaccurate. (However, “unqualified statements of material fact that set the basis for discussion” may be held inaccurate).

When complaining about balance, identify the focus of the programme, and specify the matters omitted or the questions that were unasked. If the broadcaster asserts that it has published lots of viewpoints in the period of current interest, invite it to provide specifics.

What should broadcasters bear in mind when responding to complaints?

When a complaint involving balance, accuracy or fairness is made that seems to have some substance, quickly organise the broadcast of some balancing or accurate material, preferably with similar prominence. This will at least provide a solid platform for later argument that balance was supplied in the period of current interest, and that any harm was minimal and has been addressed.

In decisions on complaints, do not invite complainants to substantiate their complaints. Consider providing brief reasons for rejecting complaints so as not to give scope for rebuttal which may allow the complainant to widen the grounds of complaint.

In response to balance complaints, identify the other programmes that supplied significant views.

Use the NZ Bill of Rights Act. Don’t just wave the freedom of expression clause like a like a talisman. Don’t just cite some unprovable and implausible “chill” effect. Remind the BSA that it has accepted that any restrictions on freedom of expression must be demonstrably justified under section 5: Television New Zealand Ltd v Viewers for Television Excellence Inc [2005] NZAR 1, para 48 (Wild J); Browne v Canwest TV Works Ltd, Wellington High Court, CIV 2006 485 1611, 31 July 2007, paras [33]-[40] (Wild J). Then explain why upholding the particular complaint would be an unjustified (that is, disproportionate) limitation. Case law supports a range of arguments: the particular programme in question is important, it is in the public interest, it has a significant investigative component, it relates to important political questions, it is advancing viewpoints, etc – so any justification for restricting it must be strong indeed. Likewise, the justification for a restriction in the particular case is weak: the alleged errors or breaches do not really cause any harm; there is no reason to think that upholding the complaint will serve the statutory objectives; the taste and decency and fairness standards are amorphous and should be applied with care; anything opinion-like should be provided with latitude.

It’s worth arguing that you took legal advice, focused the programme carefully on particular issues, accurately conveyed what reputable sources told you, and have merely purveyed opinions, though these arguments may not ultimately succeed.